Tags

Jurors are likely to decide today if James McVay lives or dies for the murder of Maybelle Schein.

For the past few weeks, the seven men and five women who will make the choice have heard from police, doctors, psychiatrists, counselors, correctional officers, priests and family members of both the victim and perpetrator in what is the first death penalty sentencing trial in Sioux Falls to use a jury since 2006.

If the jury votes for death, McVay will join three other men on South Dakota's death row: Charles Rhines, Briley Piper and Rodney Berget.

McVay pleaded guilty but mentally ill to first-degree murder two years ago.

He'd join them on the notorious list, but the sentence itself would become one of the most heavily-scrutinized in the state.

There are a flurry of legal questions surrounding the issuance of a death sentence. The state Supreme Court reviews every death case automatically, and their conclusion only marks the beginning of the lengthy and expensive process that tends to follow death row inmates from their sentencing date to their execution.

Plenty of the questions – whether the jury instructions and jury selection were proper, whether the judge allowed too much or too little latitude for one side or the other in presenting evidence, whether the death penalty is proper for a mentally ill inmate – are sure to emerge in the review.

Last week, Judge Peter Lieberman disallowed any mention of Schein's feelings on the death penalty, citing a decision from the 8th Circuit Court of Appeals. The defense objected, saying that Schein's feelings on the death penalty (she was opposed to it, they say) ought to be a part of the jury's consideration.

Judge Peter Lieberman once again said this morning that he won't let anyone else's opinion on the death penalty as a concept taint the trial on the applicability of a death sentence in McVay's specific case.

"The only opinions on the death penalty or the applicability in this case that matter or those of the 12 members of the jury," he said.

South Dakota's high court justices will almost certainly hear about that in appeals if McVay is sentenced to death.

They'll surely hear about proportionality, as well. Proportionality reviews consider the gravity of McVay's crime as compared to the crimes of people who did not receive death sentences.

Piper helped killed Chester Allan Poage in a hourslong torture murder session that involved forcing Poage to drink acid, for example. They made the victim strip in an icy creek, kicking and stabbing him repeatedly before his death. His body wasn't found until a month later.

Donald Moeller, executed in 2012 for the rape and murder of 9-year-old Becky O'Connell, stabbed his victim dozens of times and raped her vaginally and anally, but denied committing the crime through two trials with conclusive DNA evidence.

Rhines led Donnivan Schaeffer to a pallet in a doughnut shop storeroom and sat him down as the young man pleaded for his life. Rhines applied a buckknife to the back of Schaeffer's neck and shoved it into his brain. Rhines ducked police for months.

Does McVay's crime, which involved stabbing Schein nine times, measure up? He only stabbed her nine times because she fought, McVay says – he wanted to kill her quickly. He was captured quickly, admitted to the crime immediately, and expressed remorse quickly and repeatedly.

He's also mentally ill.

Rhines wrote me a letter a few months back with a list of at least 20 murder cases in South Dakota that involved killings as bad or worse than the Schaeffer murder. It wasn't a rambling list from an angry condemned man – it was actually a list from his own proportionality review.

Suffice it to say: Prosecutors don't seek a death sentence in every case where they could get one.

All of the basic questions about proportionality and evidence that the state Supreme Court hears are appealable again through state and federal habeas corpus proceedings. Those can drag out for years.

The questions before the men and women who will decide McVay's fate are far simpler than any that would appear in appeals like those, though.

These jurors don't know the details of the other death cases. They don't know anything about the arguments used to clear evidence.

What they know is what they've heard: McVay lied to his psychiatrists and planned for months to walk away from prison, then kill and steal his way to Washington, D.C. to assassinate President Barack Obama. He called Schein a "piece of meat" that stood between him and a car for his mission. He ran from police and threatened to kill police, correctional officers and anyone else who got in his way.

They've heard that McVay mentally ill, gets obsessed and wrapped up in his own psychoses, that he hadn't hurt anyone or followed through on any threats before or since committing the drug-fueled murder of Schein (he'd swallowed cold pills and drank Jack Daniels to give himself "liquid courage").

The jury's already decided that McVay's crime makes him eligible for the death penalty.

Now they need to decide if he actually deserves it – not whether he deserves it when compared to some other killer or whether the victim or her family and friends would have wanted him dead

All twelve need to agree that he deserves death. If anyone thinks McVay's life is worth living, he'll get life without parole.

That decision would avoid the near-inevitable and always costly appeal process for McVay.

That's a big plus for people like Pastor Steve Hickey, who tried to abolish the death penalty in South Dakota during this year's legislative session.

For this jury, in this specific case, on this specific day, it doesn't matter at all.